1989SCMR821 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by a defendant/vendee in a pre‑emption matter from judgment 3‑10‑1987 of the Lahore High Court, whereby respondent's R.S.A. was partly allowed and his pre-emption suit was partly decreed.

2. The petitioners/vendees arc the tenants. They had purchased a share of larger khata wherein they were tenants on a smaller parcel of that khata. Respondent/plaintiffs suit for pre‑emption was decreed by the trial Court. It was dismissed in its entirety by the First Appellate Court. On Second Appeal filed by the respondent the suit was dismissed to the extent of the share only purchased by the petitioners in the land which was under their cultivation.

3. The learned counsel has contended that the District Judge having set aside the decree before 31.st of July, 1986, when the judgment of this Court in the case of Government of N.W.F.P v. Malik Said Kamal Shah P L D 1986 S C 36(1 came into effect, the High Court was not competent to decree the respondent's suit even partly because the law of pre‑emption under which the suit was filed ceased to have effect on that date. This controversy now stands resolved by the A recent judgment of this Court in Sardar Ali etc. v. Muhammad Ali etc. P L D 1988 S C 287 (C.A. 208/80 etc. decided on 2‑8‑1988). In the circumstances of this case, it goes against the petitioners.

4. The learned counsel then contended that the petitioners were tenants on 28 kanals, 17 marlas of land. It formed part of the bigger khata which measures 175 kanals, 2 marlas. The petitioners purchased 1/4th of the share in the entire area of 175 kanals, 2 marlas which came to about 42 kanals. That being so, the learned counsel argued, that the decree should have been passed in respect of 28 kanals, 17 marlas of which the petitioners were tenants. Instead, the High Court has passed the decree to the extent of 1/4th share of 28 kanals, 17 marlas. As the judgment of the High Court has the support of the decision of this Court in Fatch Khan v. Abdul Rahman 1983 S C M R 293, therefore the learned counsel contended that the view taken therein may also be reconsidered.

5. We do not agree with the learned counsel. There is another judgment of this Court which goes against his contention‑‑Lal Khan v. Faiz Ahmad and another 1986 S C M R 1962. It is not appropriate to grant leave to appeal in this case for reconsideration of these judgments of this Court.

6. We invited the learned counsel to make his submissions in support of his plea that a tenant who purchases a share only in a larger khata; which, in its entirety, is not under his tenancy, can get the entire land (within the total area purchased) which is under his tenancy. On surface his argument that the entire land in his tenancy if forms part of the khata and also part of the purchased land, should be kept out of pre‑emption on the basis of his superior right is attractive; but on deeper scrutiny the argument is found to be of no force. When the petitioners purchased 1/4th share of 175 kanals, 2 marlas, (total about 42 kanals) they became owners by virtue of this purchase (even) in each of the smallest parcels of 175 kanals, 2 marlas to the extent of 1/4th share. Similarly, they became owners of 1 /4th share only in every parcel of the land under their tenancy. Therefore, the land which they had purchased from out of the'land under their tenancy was only 1/4th of it. If the land had been partitioned before the sale and the entire 28 kanals, 17 marlas would have come to the share of the vendor from whom the petitioners purchased the position would have been different. In seeking protection for the entire area under their tenancy of 28 kanals 17 marlas, the petitioners seek not only the protection under the pre emption law but also another relief vis‑a‑vis partition amongst all the owners of 175 kanals, 2 marlas, which, admittedly will be, not only unfair, but also illegal. We, accordingly, finding no merit in the arguments of the learned counsel, dismiss this petition. A.A./A‑406/S Petition dismissed.